Clarence Thomas' critics dissected him as a nominee to the Supreme Court and have lambasted him as a judge, most recently for his dismissal of legal precedents. Thomas' defenders rebuke the critiques and argue that he actually has a sophisticated and nuanced view of the law that the country could use more of.

With President Bush now likely to nominate the next Chief Justice, speculation again surrounds Thomas. Should the nation's youngest justice take charge of the high court?

Marcosson: 1/3/05, 08:57 AM
As you might imagine, the idea of adding "Chief" to Justice Clarence Thomas's job description makes me queasy. The strange thing is, I'm not sure if a Thomas nomination would be a Pepto moment for me more because he is an originalist, or because he isn't. His originalist side bothers me a lot, but I think the overwhelming inconsistency bothers me even more.

You wrote in your recent review of Ken Foskett's Thomas biography, Judging Thomas, "There can be no doubt that Thomas's approach to the Constitution is the clearest contemporary example of originalism . . . " No doubt? Certainly, originalism is on display in many of Thomas's opinions. But it vanishes when adhering to the originalist vision would be personally or politically painful for Thomas. The Equal Protection Clause (EPC) of the 14th Amendment offers the most obvious, and troubling, example of Thomas's "part-time" originalism. It is quite amazing that Justice Thomas has not, in a single opinion, even mentioned (much less analyzed) the original understanding of the EPC. His Michigan affirmative action dissent, discussed in your Foskett review, is typical; it is a long, passionate, eloquent (though unpersuasive) policy argument. Correct me if I'm wrong here, but I had thought policy arguments are to originalists what sunlight is to vampires.

The core problem for Thomas, and for originalism, is that its consistent application would be unacceptable politically. But jurisprudentially, it cannot afford the luxury of inconsistent application. Originalism is supposed to bring certainty and legitimacy to the enterprise of judicial review, by anchoring judges to the framers' understanding of the text of the Constitution. If an originalist wavers when the going gets tough, that virtue becomes illusory. In short, Justice Thomas cannot claim the mantle of originalist legitimacy when he tells me (as I am confident he would) the Constitution does not protect my right to marry in Kentucky, while advocating the non-originalist position that it does protect his right to marry in Virginia.

If Justice Thomas were a genuine originalist, the country could benefit from the fight his nomination would produce, and from a meaningful debate over whether we really want a genuinely originalist Court (Presser, Chief Justice, presiding?). By all means, let us discuss whether the Court should overrule Loving v. Virginia, leaving the states free to criminalize interracial marriages, and Pennsylvania Coal v. Mahon, leaving them free to regulate the value of property down to nothing without giving just compensation. Originalism would emerge much less well-regarded from a thorough airing of all its implications. Since Thomas is an originalist-of-convenience, rather than one of principle, his nomination would instead prove simply that there are no true originalists on the Court, including Clarence Thomas.

Presser: 1/3/05, 03:26 PM
Thanks for your delightful opening shot. You raise so many provocative points that I'm not sure that a few days will be enough even to begin to discuss them. In this first reply, apart from thanking you for your gracious offer of the Chief Justiceship, I'll simply address originalism in general and Thomas's originalism in particular. I do think that he's probably the most faithful originalist on the Court today if what we mean by originalism is someone committed to interpreting the constitution according to the understanding of its meaning at the time it was ratified, and further someone who believes that "original understanding" (which I prefer to my eponymous chair-donor's "original intent") trumps a line of even Supreme Court precedents contrary to that original understanding. Thus, if Foskett reports Scalia's comments accurately, Scalia is a less faithful originalist than Thomas. The only other plausible candidate on the Court would be Rehnquist, but I think he'd probably concede that he's more committed to stare decisis than Thomas.

Is it true that Thomas is an "on-again, off-again" originalist? Your suggestion that Thomas's personal policy preferences mean more to him than originalism is bottomed on Thomas's declared affinity for interpreting the EPC as a declaration of a color-blind constitution, when the framers of the EPC clearly did not intend to abolish segregated schools, miscegenation statutes, or lots of other Jim Crow paraphernalia. But all Thomas is doing here is following the first Justice Harlan's reading of the EPC, and he was close enough in time to have captured the "original understanding," and thus the "original intent" of the framers of the EPC is irrelevant. I could also finesse the issue and defend Thomas by making the move my colleague Michael Perry used to make and claim that an originalist interpretation of "equal protection," given that the Amendment was clearly designed to deal with treatment to be accorded by the newly-freed blacks, means that any state-mandated treatment of one race differently from the manner in which another is treated is a violation of the EPC, again getting us to the point of a "color-blind constitution." But you could reply that once I start dealing in levels of generality I (and Thomas) would have a tough time convincingly arguing to you that the EPC should deal only with matters of race, and not, say, gender or sexual preference.

Setting aside the troublesome EPC for the moment, you'll remember that there was a clear statutory ground in the Michigan case as well, which statute expressly forbade discriminations based on race for programs at institutions given federal funding, and just as the Court of Appeals decided the case on that basis, so I think Thomas's opinion can be similarly defended. But much of Thomas's opinion is about policy, and how, in particular, affirmative action hurts the very minorities it is ostensibly designed to help, and you said that "policy arguments are to originalists what sunlight is to vampires." I see nothing wrong with originalists discussing policies, and I do think it's part of the job of judges to lecture us on the finer principles of republican government. For Thomas treating people the same regardless of the color of their skin is such a principle, and I think that one can make a powerful argument from natural law that Thomas gets that one right. I still think he'd make a fine Chief.

Marcosson: 1/4/05, 09:19 AM
I'll begin by conceding the title you bestow upon Thomas: the "most faithful originalist on the Court today." However, isn't that a bit like being the most faithful spouse on Desperate Housewives? If you want an honest-to-goodness originalist for Chief, your search is going to have to include people not on the Court today.

Scalia's comment that he and Thomas differ when it comes to stare decisis was quite interesting for a couple of reasons. First, the need to jettison precedent to accomplish the Originalist Restoration makes that project even more costly. Stare decisis doesn't exist just because judges don't want to revisit every issue they've already decided. It exists because it provides certainty and stability in the law, and because consistency of results in courts of law is an important attribute of justice. Those are important virtues that full-throttle originalism cannot provide.

Second, even if the original understanding should trump stare decisis, that doesn't exonerate Justice Thomas from my charge he is a part-time originalist. As I said yesterday, if precedent should fall before the not-so-tender mercies of originalism, then Loving must be among the casualties. Your carefully limited responding claims that color-blindness could be consistent with the EPC's original understanding are revealing. Appropriately, you never argue the framers believed they were establishing a color-blind constitutional mandate, since the overwhelming evidence is that they believed no such thing. To the contrary, those who favored color-blindness, such as Wendell Phillips, believed the amendment betrayed that principle. Surely, originalism cannot tolerate a reading of the EPC that renders unconstitutional a practiceantimiscegenation lawswhich proponents explicitly assured the ratifiers would remain unaffected, and which was upheld by an 1883 Supreme Court decision, Pace v. Alabama (in which, it is worth noting, Justice Harlan did not dissent). No, Loving could not have emerged from an originalist Court, and neither could Brown. They are the proud legacy of a "living Constitution," a Constitution that stands ready when a nation awakens to the great and truer wisdom of its underlying principles, even if those principles are fundamentally at odds with the "original (mis)understanding" held by the framers.

But it's not just the EPC. If Justice Thomas really believes in junking precedent that conflicts with the original understanding, he should call for the Court to rethink its Takings Clause jurisprudence the way he has questioned the Court's Commerce Clause precedents. The "regulatory takings" doctrine departs from the original understandingas Scalia acknowledged in Lucas v. South Carolina Coastal Counciland yet Thomas goes along with it. What do Thomas's positions on the Commerce Clause and the Takings Clause have in common? Not the original understanding, certainly. But they do neatly serve a conservative political agenda: opposing government regulations as either exceeding Congress's Commerce Clause powers, or as requiring expensive compensation that discourages environmental and land use regulations. A judge for whom doctrine is malleable to reach desired political outcomes is surely not a judge an originalist should want to see as Chief Justice.

Presser: 1/4/05, 03:30 PM
I laughed out loud at your inspired Desperate Housewives analogy; it's so rich with so many levels to deconstruct that I'm not even going to try, so let me just address some of your comments about originalism. Poor Justice Thomas. If he wants to do what you suggest, and allow stare decisis to govern some areas of jurisprudence, or maybe even permit some areas of the constitution to evolve with changes in society you'll condemn him as an on-again off-again originalist, but if he's a consistent originalist you'll condemn him for wanting to impose an order on modernity that's inappropriate. Heads he loses, tails he loses. Worse, I'm not sure we couldn't make the same criticism you make of Thomas of any other one of the Justices, or anyone who might be appointed to the bench. As far as I know, no one has a consistent plan completely to replace the constitutional jurisprudence of the last eighty years with some pure Lochnerian strain; that's not really what the debate about originalism vs. the "living constitution" is about.

Instead, the current debate over "judicial ideology," as Scalia suggested in Lawrence, is about what or who is supposed to dictate the rules the Supreme Court applies. The originalists believe that it's not the job of courts to make new social policy, especially in areas of race, religion, and abortion, and the "living constitutionalists" have no problem with that. The originalists at least have tradition and the limits it imposes on their side, but the living constitutionalists, at least if we believe Scalia, Thomas, Learned Hand, and others, have unfettered discretion, and nothing to guide them but their own consciences or cultural preferences, or maybe the work of economists, sophisters, and calculators.

If we had a Supreme Court composed of Scalias and Thomases I do suspect the abortion issue would be returned to the states, as would the issue of single-sex military academies, and perhaps even the issue of to what extent the states might choose to allow religion into the public square; but so would the question of same-sex marriage, which is, after all, what most advocates of that institution would favor as well. I suspect such a Court would also insist on a true color-blind constitution, arguing that it is anchored in tradition, if not necessarily "original intent" (but remember that sensible originalists believe in "original understanding," not original intent). Such a court would, of course, have decided Loving and Brown in a manner that you would have approved.

A Court composed of Scalias and Thomasesa Court composed of more on-again than off-again originalists, in other wordswould be more committed than is the present court to original constitutional conceptions: federalism and to the separation of powers. Are they so horrible?

Marcosson: 1/5/05, 09:31 AM
You're certainly right that Justice Thomas is in a no-win situation with me, but it's of his own making. Clearly, Justice Ginsburg is even more vulnerable to an attack on originalist grounds. But she can depart from the original understanding without giving rise to the charge of hypocrisy. Thomas cannot, so it is not unfair to judge him by the rules to which he has professed devotion.

Similarly, I grant your point that I'd say Thomas is a poor choice for Chief if his originalism was more consistent. You might ask: Why would even consistent originalism be objectionable? Not solely because I think it leads to results like overruling Loving and Brown. It's because the originalist Constitution would be dangerously illegitimate as a framework for governance. The Court has been practicing non-originalism for as long as it has for a good reason: it is the safety valve through which necessary transformations in constitutional meaning can be accomplished without resort to Article V, whose amendment process is wholly inadequate to the task of altering the Constitution to meet the needs of a society so fundamentally different from the one in which the founders lived.

Am I worried about unfettered judges roaming free in the meadows of their own policy delights? Well, the counter-majoritarian difficulty is real and should not be ignored. But it's not as if non-originalist judges are completely free to impose their policy preferences. For instance, we know stare decisis has a constraining effect on Justice Scalia's originalist commitment. Would you deny that it similarly limits a non-originalist's quest to find his or her heart's desire in the Constitution?

Two other points. First, you ask whether it would be so horrible for a Thomas/Scalia Court to return a number of issues to the states. A slight reframing of one of the examples you citesingle-sex military academieswill show why I think the answer is yes. In the VMI case, Virginia was asking to reserve privileged status, and a unique higher educational opportunity, exclusively for men. Separate-but-equal is bad enough; Virginia's policy did not even rise to that level. Worse still, it was doing so in a realm that reinforced gender stereotypes: men are soldier-protectors; women are unfit for physical rigors. Empowering states to do that just because they have done so for a long time would, indeed, be horrible. As would the stance a Thomist Court would take in denying the equal protection argument in favor of same-sex marriage. Federalism is not a virtue when it confers a license to deny substantive constitutional rights of equality and due process.

Second, you mention separation of powers. What of Hamdi v. Rumsfeld, where Thomas and Scalia so dramatically parted company? Scalia's fidelity to the Constitution's rules surrounding habeas corpus was downright heroic. Thomas, on the other hand, virtually disqualified himself as a potential Chief with his alarming solo dissent. His view that the courts should, merely on the say-so of the Executive Branch, be off limits to American citizens invoking habeas usurped the roles of two branches. The Constitution assigns to the Legislature, not the President, the authority to suspend the Great Writ when "in Cases of Rebellion or Invasion the public Safety may require it." If habeas has not been suspended, then the Constitution assigns to the Courts, not the President, the authority to decide whether the writ should issue because constitutional rights have been violated. It is never more critical that the Court get it right than when the constitutional balance of powers is at stake. In Hamdi, Scalia got it right. Thomas did not.

Presser: 1/5/05, 03:19 PM
It's such a treat to correspond with you. I'm not sure if I've ever encountered anyone in the academy as thoroughly and audaciously honest about the implications of his thoughts or his assumptions. If I understand you correctly, your position is that the constitution is too difficult to amend, the framers got the amendment process wrong, and so it should be the job of the United States Supreme Court to serve as an ongoing constitutional convention and ratification emporium combined. That position does have the virtue of accurately describing many decisions of the Courtas Scalia, Thomas, and Rehnquist have understoodand I think it also accurately reflects the jurisprudence of Sandra Day O'Connor, if not that of Kennedy, Souter, Ginsburg, Breyer, and Stevens as well. Curiously, all of them at one time or another (correct me if I've got that wrong) have paid lip service to originalism, and none of them have gone on record claiming the broad power to amend the Constitution on the grounds that Article V doesn't work any more. You seem to suggest that Thomas is unfit to be Chief Justice because he's hypocritical about his originalism, but the charge can be made just as forcefully if not more with regard to all the other Justices. If, as our official ideology has it, it's better to pretend to be an originalist, I prefer one like Thomas, who delivers more often than not.

But perhaps it would be your position that this truth about the court as constitutional amender must be concealed from the American people, and that's why all the Supremes claim on Sundays to be originalists while administering a living Constitution the rest of the week. I hadn't pegged you for a Straussian, or a follower of Plato's suggestion that the people shouldn't be disabused of their myths. More to the point, I see no reason to think the amendment process doesn't work or that the framers got it wrong. I will concede that there is abroad in the land, often manifested by the same people who believe the Court should administer a living constitution, a belief that the constitution is sacred (at least when it comes to the popular process of Article V) and should not be amended lightly, and perhaps not amended ever. This, I think, is hypocrisy, elitism, a power-grab (pick your pejorative of choice) of a kind that would qualify as a Platonic form. I like Thomas's jurisprudence better. I do believe that constitutional change is proper and possible through the Article V process, and we've seen it in recent years. To think that we need the Supreme Court to do our amending for us simply because that's what it's been doing is to engage in a post hoc ergo propter hoc fallacy. I'm not afraid of amendments, because I'm not afraid of the American people, and, as Burke was prepared to put his faith in the English people as a whole, so am I in the American people. I'm trying to suggest here that the Article V process is all about popular sovereignty, and that when we substitute the Supreme Court for Article V we've lost our country.

You have a clear sense of your values, and a clear sense of what Supreme Court decisions you favor (e.g. VMI, Loving, Brown, Roe and Lawrence (I would guess)). As I've indicated before, I think Loving and Brown can very possibly be justified on originalist grounds (believing that the original understanding of the EPC is amenable to construction as a color-blind constitution). VMI, Roe, and Lawrence, it seems to me, are judicial usurpations of the policy-making and constitutional amendment process, and unless we're willing to cashier the notion of popular sovereignty (you're not, are you?), I hold, with Scalia, Thomas, and Rehnquist, that there are policy choices involved on which reasonable people might differ, and it is better to let the political process or the amendment process resolve them. To come back to a TV series for a moment, there was one great line that JR had on Dallas when he said "Power isn't something you're granted, power is something you take." I always thought that revealed the essentially callow ruthlessness of JR, and that's not how I want my Supreme Court. Sorry to rant at such length. We'll leave Hamdi for another day.

We agree that our constitution has undergone immense changes by means (including "transformative interpretation" by the Court) that are not strictly kosher according to Article V. What are we to make of this? In my view, it represents a consistent historical tradition accepting constitutional change by these means. It is quite like what Justice Scalia was getting at in Board of County Commissioners v. Umbehr, where he professed a willingness to interpret the constitution in light of long-standing traditional practices that had arisen under it. Constitutional change outside Article V is one such practice.

I accept this tradition in large part because it has not been the result of a J.R.-like power grab by the Courtas if We the People would have permitted such a move! My faith in popular sovereignty is such that I presume the peoples' ultimate control over what has gone on. Non-Article V transformation has occurred because it has been accepted as a vital means of keeping the constitution current and meaningful over changing times.

Transformative interpretation has gone on for another disarmingly simple reason: it has been a magnificent success. It has permitted our understanding of concepts like "equal protection of the laws" to grow over time and extend the reach of the constitution's protections. The framers of the 14th Amendment understood equality to permit racial classifications like antimiscegenation laws. No new amendment was necessary for the Court a century later to pronounce that they were, simply, wrong about that. Similarly, the framershaving no experience with a gay rights movement or even with the idea of homosexual identitywould not have understood their handiwork to encompass a right to equal legal treatment of gay peoples' committed relationships. But it requires no amendment for the Court today to hold that the ideal of "equal protection" reaches that far. When I say the constitution is living, I mean it lives in, and knows, our world as well as that of the framers. The Court is, and should be, entrusted with matching the framers' ideals to our worldwith the People always having the final say if the Court gets it badly wrong. Thus, I would not hide a bit of it from the American public. I think it is clear our constitutional order is better off with the transformative processes that have developed over time, as well as with the substantive changes those processes have brought about.

One last point. You suggest that VMI and Lawrence are policy-making usurpations, with no basis in the rights guaranteed to the people by the constitution. Thomas, of course, agrees with you. Seeing the constitutional basis in both cases is simple, really. Virginia offered an educational opportunity to men but not to women (not even in a separate-but-equal facility; not at all). In its defense, Virginia could offer no better reason than that it had been doing so for a long time. That's not a policy dispute. It's unjustifiable unequal treatment, and hence a violation of the constitutional mandate that Virginia treat people equally. Texas criminalized sexual acts done in private by two people of the same sex, but did not punish the self-same sexual acts done by two people of the opposite sex. That too is not a policy dispute, but an offense against the constitutional mandate that Texas treat people equally (as well as the separate requirement that it let people alone in the privacy of their homes when it has no good reason to do otherwise). To paraphrase Browning, if these practices should exceed equality's grasp, then what's the 14th Amendment for?

Now, about Hamdi . . .

Presser: 1/6/05, 10:08 PM
I'll begin by coming back to Hamdi for a moment. You object to Thomas's lone dissent in that casenay, you've indicated that it's a disqualifier for elevating him to Chief Justicebecause, in your view, Thomas's dissent in effect amends the constitution by allowing the executive rather than the legislature to waive habeus corpus, beyond the reach of courts. And yet, you've just told me that you favor allowing the Court to amend the constitution outside of Article V, because that's what it does and does so well. Somehow, however, it's not a game that you want Thomas to play. What kind of discrimination are you practicing?

To be a bit more serious, however, I think what you're trying to tell me is that you don't like Thomas, not really because of his inconsistent originalism, but rather because you feel he's out of tune with the view which you now claim has popular approval: that it's the job of the Supreme Court to amend the Constitution outside of article V. What's more, you like the results of that ongoing amendment process, you think the American people do as well, and you're pretty sure Thomas does not (and neither do I).

You argue that this sort of Supreme Court constitutional amendment is nothing new. I'll grant you the New Deal court in 1937 amended the prior understanding of "interstate commerce," and probably "due process" as well, and that the Warren Court amended the meaning of "equal protection" and lots of other constitutional provisions. I really do think that it would be hard to get a majority of Americans to agree that we have a long clear and venerated tradition of using the Court to bypass Article V, and amend the constitution, however. Moreover, I don't agree that the Warren Court's decisions (apart from Brown) have necessarily met with popular approval, nor am I prepared to agree that the results of the Warren Court's, the Burger Court's and the Rehnquist Court's exercises in ignoring Article V have been applauded by the American people.

Very large majorities of the American people, for example, do not understand why the American flag cannot be protected from desecration, and would cheerfully sign on to a constitutional amendment to do just that (I believe all 50 of the state legislatures have indicated they would approve the amendment, although it keeps failing in the Senate by a very few votes). Very possibly a sizeable majority of the American people believe that the question of abortion ought to be resolved at the state level. I'm pretty sure a majority of Virginians would have liked to see VMI remain a single-sex institution (you're wrong, by the way that Virginia had only tradition to rely on, there was testimony that to introduce women into VMI would radically alter the nature of the military discipline and the cohesion-building practices at the school, which were of its essence, and Virginia did take steps to offer a different program, more suited to women, at Mary Washingtona stab at separate but equal). We should probably take VMI off the table, though, because, you'll remember, Thomas didn't participate in that case (I think his son was a VMI student).

More to the pointnot only do I not believe that the American people have acquiesced in the attempt to make Article V irrelevant and discourage its use, I think the recent election victory of George W. Bush, and his very visible stump support for Scalia and Thomas as judicial models, proves that the American people are beginning to understand what the Supreme Court has been up to, and they don't like it. That's after all, how we end up considering the possibility of Thomas for Chief Justice in the first place. Your belief, like Bruce Ackerman's, that the Court ought to be amending the constitution, I daresay, is the belief of the majority of the law professoriate, and of the chattering classes, but hardly that of the American people (or at least those in the red states).

Marcosson: 1/7/05, 08:23 AM
I think we can reach a sort of finish, in that I can sum up the basis for my opposition to the Thomas for Chief Campaign. But I hope the dialog we've established between the two of us continues, even if it takes a more private form. I've enjoyed the give and take immensely.

Am I unfair to Justice Thomas's Hamdi opinion? You make a move both interesting and amusing in defending it as just the sort of amendment by judicial fiat I've professed to like (touche!), but of course that's not much of a defense from your point of view, is it? But to take the point on my terms, and perhaps to clarify what I like the Court to be doing, the "transformation" Justice Thomas sought to work in Hamdi did two very dangerous things: it usurped a clear, textual power of Congress (to suspend, or not, habeas corpusScalia's point); and it abdicated the Judiciary's own responsibility to determine whether the Executive branch has overstepped constitutional limits in executing the laws. If I've given indication that I approve of that, let me be clear: I don't.

That sort of fundamental shifting of powers between the branches, which is both directly contrary to the existing text and allows government abuse of individual freedoms to go unchecked, requires Article V-style amendment if it's going to happen at all. It bears no resemblance to the Court expanding the scope of the Constitution's protections in cases like Brown or Lawrence or VMI. (I think VMI stays on the table; is there any doubt how Thomas would have voted had it been The Citadel rather than VMI?) In each of those cases, the Court simply recognized modern insights into the nature, and injustice, of forms of inequality, refusing to accept them simply because the Court and country had previously done so. The Court didn't write equal protection into the constitution; it made equal protection more real for more Americans through plausible transformative interpretation of the existing text. Allowing the President to suspend habeas corpus and act without judicial oversight? That's not interpretation; that's the stuff of amendments.

Which brings us full circle back to my core objection to Clarence Thomas as Chief Justice. I object to him because he simultaneously disclaims the traditional and necessary role the Court has played in transforming the Constitution through interpretation, while at the same time issuing some opinions entirely inconsistent with his professed fidelity to the text and the original understanding thereof.

Finally, if the last election really was a message from the people about Justices Scalia and Thomas, I have to ask: does that mean they like Scalia's smack-down of the President in Hamdi, and his vote to strike down flag burning statutes in Texas v. Johnson? Or do they like the blank check Thomas wanted to write for the President in Hamdi? Aren't you a little guilty of the conflating of the two of them in the way some of Thomas's critics do? (Haven't you noticed how much I've been separating them all week?) For my part, I think the election was about the public's approval of Mr. Bush's handling of the war on terrorism, and about Mr. Kerry's inability to persuade the people he represented a viable, trustworthy alternative or had a better plan for Iraq.

But you may be right. And you know what? If you are, then the political processes will rein in what the people will decide have been the Court's excesses. Again, I trust them to exercise popular and ultimate sovereignty, and so I fear the Court much less than you do even when its rulings infuriate me. It happened in the 1930s, and it could happen again. If it does, I hope that the process does not go nearly so far as to fundamentally change the transformative role the Court has played these 200-plus years. That role has been vital in making America greater, fairer, more inclusive, and in making our ideals of liberty and equality more real with each passing decade. It is because we still have far to go, and because I do not trust Clarence Thomas to continue that tradition and that progress, that I hope he is not our next Chief Justice.

Presser: 1/7/05, 02:49 PM
Damn! Both because I'm a little sad to see our dialogue come to an end, and also because I'm not sure there's much more that can be said today. We're agreed on popular sovereignty as the basis of our government, and that the people ultimately have a responsibility to check the Court if it fails to do its job. We're agreed, I think, that if the Court's job has become to amend the Constitution it's hard to criticize Thomas if he proposes a constitutional amendment on habeus corpus to deal with a war against the kind of a foe never contemplated by the framers.

Where we're still at odds, though, is over two things, whether it's really legitimate to have the Court function as constitutional ephors, and whether Thomas would be a good Chief. You want to condemn Thomas on habeus corpus on the grounds that he would be fundamentally altering what the constitution allocates to the executive and legislative branches. You propose a standard, suggesting that the Court's equal protection decisions (especially Brown, Loving, VMI, Lawrence) instead of rewriting the constitution, "made equal protection more real for more Americans through plausible transformative interpretation of the existing text." You propose a "plausible transformative interpretation" standard for when constitutional amendment is OK, and a "fundamental alteration" standard for when it is not. Alas, one persons "plausible transformative interpretation" is another's "fundamental alteration." A critic of Roe, Casey, Lawrence et. al. might argue they represent "fundamental alterations" in our federalism or separation of powers schemes, and you might argue these are simply "plausible transformative interpretations." I'm not quite sure how we convince an objective observer (if any there are) that the debate between you and me is not simply about the substantive outcome of constitutional cases we prefer and not about hermeneutical strategies.

And that brings us, as you put it, full circle back to Thomas. You're uncomfortable with the notion of him as Chief because you don't believe he has sufficient regard for what you believe is our constitutional tradition of constitutional amendment by the Court, anchored in the "plausible transformative interpretations" you like, and I like Thomas because his views on originalism, equal protection, race, and the constitution, federalism, and even natural law are pretty much the same as mine. I think he's very much in the tradition of the framers, and you find him out of the mainstream. We'll let the President decide, and the American people react. Or, if former Thomas clerk John Yoo is correct, Thomas may well decide he can be more effective as an Associate Justice, and neither of us will ever get the chance to determine which of us got it right.